Charles I. Hosmer, Inc. v. Commonwealth

Decision Date07 March 1939
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 495
19 N.E.2d 800


Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1939.

Report from Superior Court, Suffolk County; Morton, Judge.

Action to recover a balance due under a written contract and for damages allegedly suffered because of delays in performance of the contract, by Charles I. Hosmer, Inc., against the Commonwealth of Massachusetts. On report.

Order in accordance with opinion.

[19 N.E.2d 802]

R. W. Frost, of Boston, for plaintiff.

E. O. Proctor, Asst. Atty. Gen., for the Commonwealth.

RONAN, Justice.

This is a petition against the Commonwealth under G.L.(Ter.Ed.) c. 258, to recover a balance due under a written contract, executed by the petitioner with the Commonwealth, for the construction of an extension to a re-enforced concrete beam bridge in the towns of Bourne and Wareham; and also to recover damages alleged to have been suffered by the petitioner on account of delays in the performance of the contract, due to the action of the respondent. The petition sets forth that the petitioner was delayed in the commencement of the work by the indecision of the department of public works and the negligent failure of the said department to approve a subcontract for certain materials and to furnish proper plans for the new bridge. It is further alleged that, after the work was begun, its progress was interrupted by the neglect of the department seasonably to give the petitioner a schedule for structural steel fabrication; by the request of the department that the prosecution of the work should not interfere with the use of a public highway; by substituting the use of tie rods instead of cables; by changing the size of the lighting conduit and junction boxes; by the unreasonable delay in giving orders for extra work and by the unreasonable failure of the department to have the telephone cables removed. The Commonwealth admitted the balance due on the contract as alleged in the second paragraph of the petition, and filed an offer of judgment as permitted by G.L.(Ter.Ed.) c. 231, § 74, and c. 258, § 2, in the amount claimed, with interest. To the remaining paragraphs of the petition the respondent filed a paper purporting to be a plea, which alleged that all of the claims set forth in these paragraphs were not recoverable against the Commonwealth. In the Superior Court, this pleading was apparently treated as a plea in equity. The parties agreed that the respondent had paid for all extra work. The only evidence introduced at the hearing in the Superior Court was upon the truth of the allegations contained in this pleading. It was adjudged sufficient and sustained. The judge found and ruled: ‘As to the truth of the plea in fact it appears that the contract forming the basis of the action bars claims for damages founded upon delay in the starting of the work to be performed under the contract, or any suspension thereof. As the matters of complaint that are set forth in the petition were based upon a claim for special damages in consequence of delay in the start of the work and interruption in the progress thereof after the start, which I rule would come within the term ‘suspension’ as used in the contract, the plea is found to be true in fact, and I therefore sustain the plea, except as to paragraph 2 thereof [of the petition], with regard to which the respondent filed an offer of judgment for the amount declared upon therein.' The case is here upon a report ‘upon the single question as to whether the provisions of the contract and standard specifications are a defense to the claims for delay alleged in the petition.’

G.L.(Ter.Ed.) c. 258 furnishes the only remedy for the establishment and enforcement of all claims at law or in equity against the Commonwealth except in the few instances where some other method is authorized. Nash v. Commonwealth, 174 Mass. 335, 54 N.E. 865;McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, 83 N.E. 334. The nature of the claim asserted is one in contract which could be enforced at common law by the ordinary methods if the respondent were other than a sovereignty. The Commonwealth is expressly authorized to avail itself of the provisions of the statutes relative to tender, offer of judgment, set-off and recoupment. We think that the proceedings should be regarded as setting forth an alleged claim at law although brought in the form prescribed by c. 258. Stockbridge v. Mixer, 215 Mass. 415, 102 N.E. 646;Adams v. Silverman, 280 Mass. 23, 182 N.E. 1.

The character and purport of a pleading are to be determined by the substantial allegations and the essential matters which it contains rather than its form or the title by which it is described. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883;Universal Adjustment Corp. v. Midland Bank, Ltd., of London, 281 Mass. 303, 328, 184 N.E. 152, 87 A.L.R. 1407. Pleas in bar have been abolished in actions at law and we think that the pleading in question should be treated as an answer in accordance with its plain tenor and its true nature. Whiton v. Balch, 203 Mass. 576, 89 N.E. 1045;

[19 N.E.2d 803]

Young v. Duncan, 218 Mass. 346, 106 N.E. 1;White v. E. T. Slattery Co., 236 Mass. 28, 127 N.E. 597;Partan v. Niemi, 288 Mass. 111, 192 N.E. 527, 97 A.L.R. 473;DiRuscio v. Popoli, 269 Mass. 482, 169 N.E. 548;Gallo v. Foley, Mass., 11 N.E.2d 803;Styrnbrough v. Cambridge Savings Bank, Mass., 11 N.E.2d 807.

The petitioner is not harmed by dealing with the plea as an answer to an action at law rather than as a plea in a suit at equity. The petitioner is not denied any technical advantage. The burden of proof was on the petitioner to show that it was entitled to recover damages for delay. The Superior Court apparently considered the plea as a negative one and that the burden was upon the petitioner to show that the allegations contained in the plea were not true. Reilly v. Selectmen of Blackstone, 266 Mass. 503, 511, 165 N.E. 660;Becker v. Zarkin, 292 Mass. 359, 198 N.E. 246. The petition and the plea were based upon the same ground, the written contract. There is no difference between the obligation assumed by the petitioner when it brought the petition to prove that its claims were not barred by the contract and the burden that rested upon it when it was required to prove that the plea, which was based entirely on the same contract, ought not to have been sustained because the contract was not a defence to its claim. The case was actually heard upon the petitioner's right to recover damages for delays. A party whose rights have been correctly determined according to law has no just grounds of complaint even if the court proceeded upon a mistaken assumption of the nature of the pleading that initiated the proceedings in which the decision was made. A full trial, untainted by any substantial error, has been had upon a decisive issue and the petitioner must abide by that result. Magee v. Flynn, 245 Mass. 128, 139 N.E. 842;Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N.E. 7;Slocum v. Natural Products Co., 292 Mass. 455, 198 N.E. 747;Rathgeber v. Kelley, Mass., 13 N.E.2d 1;Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224.

The findings of fact made by a judge in an action at law must be sustained if they can be supported upon any reasonable view of the evidence, including such rational inferences as the evidence warrants. Moss v. Old Colony Trust Co., 246 Mass. 139, 140 N.E. 803;State Street Trust Co. v. Lawrence Mfg. Co., 284 Mass. 355, 187 N.E. 755;Mutual Life Ins. Co. of New York v. Royal, 291 Mass. 487, 197 N.E. 646;Graustein v. H. P. Hood & Sons, Inc., Mass., 200 N.E. 14.

A party to a contract, who is not precluded by its terms from asserting a claim for damages due to delay in commencing or in completing performance, may recover if he can show that the delay was a breach of some express provision of the contract or of an implied obligation imposed upon the other party to the contract not to interrupt or hinder the progress of the first party. Blanchard v. Blackstone, 102 Mass. 343;Gilbert & Barker Mfg. Co. v. Butler, 146 Mass. 82, 15 N.E. 76;Currier v. Gray, 252 Mass. 78, 147 N.E. 567;Eastern Massachusetts Street Railway Co. v. Union Street Railway Co., 269 Mass. 329, 168 N.E. 781;Bucholz v. Green Bros. Co., ...

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